The Supreme Court will hear argument in Kiobel v. Royal Dutch Petroleum Tuesday, to determine whether corporations can be sued for serious human rights abuses under the Alien Tort Statute (ATS), 28 USC 1350. But some scholars are urging the court to decide the case on other grounds.

There is a set of conservative legal scholars who intensely dislike the ATS and especially its modern use in international human rights cases. This dislike is somewhat mystifying – what the ATS essentially does is allow cases to be brought in federal court, rather than state court, where they implicate torts against aliens in violation of serious international law violations, such as torture or genocide. Would it really be better to hear cases against Paraguayan torturers or Rwandan genocidaires in state court?

Led by Curtis Bradley, Anthony Bellia, and Bradford Clark, this group of scholars argued strenuously that the ATS did not allow cases under modern human rights law at all. After this position was thoroughly repudiated by the Supreme Court in Sosa v. Alvarez-Machain, they have trotted out new arguments. The latest, from Bellia & Clark, is that the ATS only allows suits by aliens against U.S. citizens; it’s started to get some traction, as four Ninth Circuit judges adopted a version of this argument in their dissent in the Sarei v. Rio Tinto case decided in October.

Bellia & Clark’s argument is based on the notion that when the First Congress passed the ATS in 1789, it intended to invoke only constitutional diversity jurisdiction, and that the only purpose of the ATS was to backstop statutory diversity jurisdiction where the amount-in-controversy requirement was not met. Because the Supreme Court later held that diversity jurisdiction only extended to suits between an alien and a U.S. citizen – not suits between aliens – the ATS, which only allows suits by aliens, must necessarily only allow suits against U.S. citizens.

Clever as it may be, this argument is no more consistent with Sosa than these scholars’ earlier positions were. The Supreme Court ruled that the ATS was intended to allow federal courts to hear claims for violations of international law as federal common law claims, suggesting that the constitutional basis for ATS jurisdiction was not diversity, but “arising under” federal law. In fact, Sosa presented a case in which both the plaintiff and defendant were aliens, but the Supreme Court voiced no concerns over constitutional jurisdiction.

The counter-argument advanced by Bellia & Clark is decidedly unconvincing. They argue that, before Erie, international law was not considered part of federal law, but rather part of the general common law – which was not covered by “arising under” jurisdiction under the Constitution. Thus they argue that the First Congress must have intended the ATS to be based on diversity jurisdiction, which only covers suits between aliens and citizens.
In fact, this argument does have some support from Sosa – just not from the majority. Justice Scalia’s concurrence (which dissented from the holding that the ATS allowed human rights claims) makes a similar argument, citing a Clark article for the proposition that international law was not considered federal law.

There’s no legislative history that actually suggests that the First Congress intended the ATS to be based on diversity jurisdiction, or that the Framers did not believe that international law claims could not arise under federal law. Congress easily could have expressly stated that the ATS applied only in diversity cases, or stated that suits under the ATS could only be brought against U.S. citizens. It did neither.

The best reading of Sosa is the one adopted by the majority of the Ninth Circuit in the Sarei case, which thoroughly refuted their dissenting colleagues’ adoption of the Bellia & Clark argument. In fact, as the Sarei majority observed, the view that international law claims arise under federal law is so uncontroversial that it is presented in a comment to Section 111 of the Restatement of Foreign Relations: “cases arising under customary international law…are ‘Cases…arising under…the Laws of the United States, and Treaties made…under their Authority,’ and therefore within the Judicial Power of the United States under Article III, Section 2 of the Constitution.”

The very first case to reference the ATS further refutes the notion that the statute was understood only to apply to diversity cases. Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795), decided only six years after the ATS was enacted, concerned a suit by a French captain who captured a Spanish ship during the war between France and Spain, and sought to claim the ship’s cargo – slaves – as restitution. The slaves had been “mortgaged” to a British citizen, whose agent sold them. Despite the fact that there were aliens on both sides of the case, the court noted that even if admiralty jurisdiction were lacking, “all doubt” about federal jurisdiction to hear the case was removed by the ATS.

I would wager that a federal judge in 1795 had a pretty good understanding of the ATS and its jurisdictional limits. Clever or not, this latest argument doesn’t hold up.

23 Responses

There is a set of conservative legal scholars who intensely dislike the ATS and especially its modern use in international human rights cases. This dislike is somewhat mystifying – what the ATS essentially does is allow cases to be brought in federal court, rather than state court, where they implicate torts against aliens in violation of serious international law violations, such as torture or genocide. Would it really be better to hear cases against Paraguayan torturers or Rwandan genocidaires in state court?

And on the flip side, there is a set of liberal liberal legal scholars who intensely love the ATS and especially its modern use in international human rights cases. Although I’m an outsider to these debates, my sense is that the liberal scholars love it it for the same reason that some conservatives scholars dislike it — the statute has been interpreted by some federal judges as a tool that can advance a political agenda that is considered liberal. Maybe that interpretation if right, maybe it’s not; I don’t know. At the same time, I guess I don’t find it very mystifying why those who like the agenda generally like the broad interpretation of the statute and those who don’t like the agenda generally don’t.

I think your reliance on Bolchos is misplaced. Either that, or you’re omitting the fact that that case dealt with a treaty.* Treaties are, of course, another explicit basis for a federal court to rely upon under the ATS, and are a separate matter from the customary-international-law issues in the Kiobel case being heard today and with the Bellia and Clark article.

The Bellia and Clark argument goes to the contemporary understanding of customary international law at that time—not what was found in late eighteenth century treaties that the United States chose to sign.

*Pointing this omitted distinction out does not mean I fully agree with the Bellia and Clark argument or its results.

There are already some 20 Supreme Court cases that have recognized corporate and company duties and rights under treaty-based and customary international law. 51 Va. J. Int’l L. 577, 578 & n.2, 586-89 (2011), available at http://ssrn.com/abstract=1701992
Also, re: the early history of the ATCA or ATS, see http://ssrn.com/abstract=1497122 which also addresses early cases on universal jurisdiction (extraterritorial jurisdiction for those who followed the oral arguments today)

I don’t find it mystifying is not that conservative scholars dislike a law that is a tool of a liberal political agenda (although I would dispute that that’s actually the case – I wouldn’t think that remedying human rights abuses would be considered a “liberal” issue). What’s strange is that the effect of these arguments would be to move these transnational cases from federal court to state courts, and it’s not clear why that’s better for anyone. In many parts of the country, plaintiffs’ attorneys would rather litigate in state court; usually defendants are trying to get into federal court, and (as with the Class Action Fairness Act) the expansion of federal jurisdiction is more of a conservative project.

As for Bolchos v. Darrell – Josh is right that the case may have been relying on the treaty prong of the ATS (it’s not entirely clear, though treaty rights were at issue), but that’s not a distinction that matters to Bellia & Clark. They make the same argument with respect to both prongs of the ATS. Their response to Bolchos is to suggest that the defendant Darrell – identified in the case only as an agent of a British subject – was a U.S. citizen, but there’s no evidence of that. Perhaps someone can dig up archives that will answer the question.

Suggesting that Congress intended to rely on the treaty jurisdiction of Art. III s. 2 for half of the ATS, and the alien diversity jurisdiction clause for the other half, comes close to suggesting that Congress intended to allow ATS suits under any jurisdictional basis available – and that would undercut Bellia & Clark’s argument completely, because there’s no question that, today, jurisdiction to hear claims “arising under . . . the laws of the United States” includes federal common law claims under the law of nations. Their argument depends on Congress having intended to limit the statute to cases against U.S. citizens, and that’s an odd interpretation if such an intent to limit the scope only applies to one of the prongs. As far as I can tell, Bellia & Clark don’t make that argument.

Thanks for the response. I’m curious about what has happened when plaintiffs have tried to bring such cases in state court. Do state courts entertain these transnational cases? And if so, how have they fared relative to equivalent cases brought in federal court?

Like Prof. Kerr, I also appreciate the response. I’ll admit that I have not read the entirety of the Bellia and Clark 108-page monstrosity published earlier this year. After going back to it, though, I believe that their response to the treaty prong of the ATS was as follows: “Although ATS suits for torts in violation of ‘a treaty of the United States’ may, in theory, have arisen under such treaty, it is difficult to conceive of an alien–alien tort claim that would have violated a US treaty.” P 455, FN 28.

With this, I think the good professors ignored the timing and import of the Bradford opinion (which was very likely a response and in recognition of the Jay Treaty ratified just two weeks before). Regardless of their possible historical oversight, it is nuts to deny an alien-alien tort claim if there is a law (like a treaty) creating federal jurisdiction for that tort.

It would be very difficult to argue that such a treaty does not provide subject-matter jurisdiction to the modern federal judiciary. Obviously that jurisdiction wasn’t exactly around in 1789, and I understand that point, but if the statute is jurisdictional (see Sosa), has a treaties prong, and there are treaties providing for tort claims (just as the United States interpreted the Torture Convention to mandate the TVPA, for instance), then it seems that Bellia and Clark’s argument can only be viable for the “law of nations”/customary international law provision of the ATS.

P.S. – I should, of course, have noted that the Bradford opinion was mainly addressing U.S. citizen complicity in the French plundering of British ships near Sierra Leone. However, the alien-alien tort claim problem still exists with the Bellia & Clark argument regarding the Bolchos case (as was mentioned), but an even more troubling aspect would be to erase jurisdiction for claims like the Marbois Affair–which was the historical impetus to pass the ATS.

After again looking at the Bellia and Clark article, and addressing Marco’s substantive point, the professors appear to tie Bolchos back to the tort having begun on U.S. soil, citing Prof. Thomas Lee’s Columbia Law Review article from a few years back. P. 459. This is, of course, different from Bellia and Clark’s main point (barring all alien-alien tort claims), and would indicate an American nexus being necessary. That would comport well with a statute granting jurisdiction to address the Marbois Affair (involving two aliens and a tort against the law of nations committed on U.S. soil).

The Bradford opinion addressed private actor (U.S. citizens0 breaches of neutrality, a crime under the law of nations and “the public peace” (now, customary international law) as well as “a treaty” ad direct incorporation of customary and treaty-based international law (“are offenses against the United States … and, as such, are punishable by indictment in the district or circuit courts.” — like Henfield’s Case in 1793 and several others). The opinion also addressed responsibility “by committing, aiding, or abetting hostilities” as well as civil liability, of which “there can be no doubt.” I believe that the S.Ct. got it wrong in Sosa (2004) because the ATCA(ATS) provides “a remedy by a civil suit in the courts of the United Stats, jurisdiction being expressly given.” It was the statute that provided the right to a remedy. It was the statute that incorporated international law as the substantive law by reference. Tony D’Amato recognized many years ago that the phrase “cause of action” did not really arise until the late 19th Century. Under international law, we use phrases such as right to a remedy, access to courts, etc. and do not use the phrase “cause of action.”
Regarding Bolchos and the history of the ATCA, see http://ssrn.com/abstract=1497122
It was well-recognized that universal jurisdiction allows civil and criminal sanctions in the U.S. courts for violations of the law of nations (customary international law). Id. at 251 n.2. It was also well-recognized that the law of nations was part of the “laws of the United States,” a phrase found in U.S. Const. arts. III and VI, and “Laws,” a word found in Art. II, sec. 3. Therefore, there was a constitutional base for the law of nations (customary international law) outside of Art. I. See, e.g., 14 U.C. Davis J. Int’l L. & Pol’y 205 (2008), available at http://ssrn.com/abstract=1485703

I appreciate that General Bradford wrote how “there can be no doubt” regarding the availability of civil liability for the aiding of the French fleet off the coast of Sierra Leone. I think the real question about that “no doubt” language is whether his lack of any doubt stemmed from the law of nations or the very recently enacted (and extremely well-known) Jay Treaty.

That point is hardly ever addressed by advocates for universal jurisdiction under the ATS. As Prof. Kerr’s initial comment noted, “there is a set of liberal liberal legal scholars who intensely love the ATS and especially its modern use in international human rights cases.” These same scholars usually ascribe great significance to the Bradford opinion, but inexorably omit its full historical context.

Orin, there is actually a symposium on Friday at UC Irvine Law School dealing with precisely the question you raise: “Human Rights Litigation in State Courts and under State Law.” The papers will be published in the UC Irvine Law Review. Here is the website with the lineup if you are interested: http://www.law.uci.edu/human_rights_litigation_March2012.html

I intend to focus on potential problems with using state tort law to get at entirely foreign conduct and harms where personal jurisdiction is obtained either through post-conduct presence or general jurisdiction unconnected to the activity giving rise to the suit. It should be an extremely interesting symposium.

Josh: I guess the Founders and Framers and drafters of the 1789 statute were “liberals”? In any event, Bradford did not refer to a treaty when using his do-doubt phrase, but mentioned the statute. It is the case that a treaty can provide a right to a remedy and access to a court of law, like today’s International Covenant on Civil and Political Rights, art. 14(1), as supplemented by the treaty’s Human Rights Committee, General Comment No. 24.

Re Prof. Kerr’s questions: “Do state courts entertain these transnational cases? And if so, how have they fared relative to equivalent cases brought in federal court?”

There are only a few such cases; most of the ATS cases against corporations are against US companies, so they would qualify for diversity jurisdiction anyway. We filed one transnational case in state court against Peruvian and US oil companies, and they promptly removed to federal court under CAFA. We filed Doe v. Unocal as an ATS case, but after ATS claims were dismissed we re-filed in California court, and litigated the case for four years, surviving summary judgment, until the case settled a few months before trial. Several cases have been filed over alleged injuries from the pesticide DBCP; some resulted in settlements, some were dismissed on the basis of forum non conveniens.

FNC dismissal is a mixed bag for defendants, of course; the Lago Agrio case against Chevron and subsequent DBCP litigation in Nicaragua demonstrate that it can have unintended consequences.

But the comparative rarity of “foreign cubed” cases involving corporations makes Kiobel an unusual vehicle for this argument. Most of the ATS cases that would be knocked out by this argument are against individual perpetrators, and most of the corporate cases wouldn’t be affected.

Josh – Re the treaty prong, here’s where I think Bellia & Clark’s argument falls apart. If you agree that “it is nuts to deny an alien-alien tort claim if there is a law (like a treaty) creating federal jurisdiction for that tort,” then why doesn’t that reasoning also apply to customary international law claims which everyone agrees are now understood to arise under federal law? Bellia & Clark’s argument is not that the Constitution does not allow CIL claims against aliens, but that Congress didn’t intend the ATS to do so, because the law of nations was not, in 1789, understood to be encompassed in the laws of the United States. (Aside: in the treaty example, the treaty doesn’t create jurisdiction – the ATS does that – but it might create a cause of action if it is self-executing.)

If that is the Bellia & Clark argument, it is clearly in error. Chief Justice Jay declared in Henfield’s Case in 1793 that the law of nations is part of the “laws of the United States” and there were so many other examples of recognitions by the Founders and Framers to that effect, indeed, that Congress was bound, the Courts were bound, the Pesident was bound by the law of nations. See, e.g., In Their Own Words: Affirmations of the Foundres, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. Davis J. Int’l L. & Pol’y 205 (2008), available at http://ssrn.com/abstract=1485703
For state court uses of international human rights law, see Paust, International Law As Law of the United States chpt. 5 (2 ed. 2003) (Carolina Academic Press).

With regard to historical context, it is true that Bradford never explicitly referred to the Jay Treaty in his formal opinion, but I think that omitting context (such as, war, the threat of war, etc.) is a mistake. Context always informs a great deal of what words mean, and pulling quotations out of context isn’t very helpful for interpreting a statute that is more than two centuries old.

Regarding the First Congress and their exact political persuasion, I thought that the Federalist majority was very concerned about keeping us out of foreign entanglements, with the ATS being a vehicle to do that. In effect, their intention was to give the newly created federal judiciary “cognizance” of embarrassing incidents like the Marbois affair (an alien to alien tort, but one that occurred on American soil) to avoid foreign reprisals. Personally, I’ve always seen the Federalists as too conservative for my liking, but I don’t know how that translates to the ever-ambiguous liberal-conservative ideological spectrum of today.

I think you’ve accurately identified the crux of the problem with the Bellia and Clark argument. I think it is very hard to deny that U.S. treaties are not both “international law” and simultaneously American law. There is no rational argument denying that a ratified treaty of the United States is not the law of the United States. Again, their argument seems even more odd given the political importance of the Marbois Affair and the Court’s detailed description about that incident in Sosa.

Also, as a non-professor or practitioner, I have to say that I very much appreciate the civil discourse and comments on this thread. It is wonderfully refreshing compared to many other legal blogs. I believe Prof. Kerr knows exactly what I am talking about with most of the comment threads to his many blog posts.

Josh: Yes, Henfield’s case (1793) is an example of serious concern about our neutrality, the need to grow our shipping and economy and stay out of the war between England and France. It was not merely that, however, which was of keen interest to the Founders and Framers. For example, chapter 5 of my tratise (above) documents many historic uses of “human rights,” “rights of man,” and “rights of mankind” but the Founders, Framers and others, includig the judiciary from the Founding to somewhat near present times.
For example, Chief Justice Marshall stated in an early opinion that our courts were created to decide on human rights.

Prof. Paust – Thanks for the reference to Henfield’s Case, which I agree knocks out Bellia & Clark completely. Jay’s opinion demonstrates that the First Congress would have understood that the law of nations was, in fact, part of the laws of the United States.

Bellia & Clark may have gotten the idea for their argument from an article by Ninth Circuit Judge William Fletcher, in which he states that “by the early nineteenth century it had become clear that the general law, including the law of nations, was not federal law in either the jurisdiction-conferring or supremacy-clause sense. . . . This meant that subject matter jurisdiction in suits between aliens for torts in violation of the law of nations almost certainly did not exist.” (93 Va. L. Rev. In Brief 1, 2.)

But Fletcher differs from Bellia & Clark in a key respect – while they argue that Congress intended to limit the ATS to diversity suits, he states that “There is no indication that the adopters of [the ATS] thought at the time that subject matter jurisdiction was questionable in such suits.” This is consistent with Henfield’s Case; even if the idea of the law of nations as part of the “laws of the United States” was later questioned, the First Congress would have understood that international law was part of federal law. And, of course, after Erie was decided it turns out that the First Congress (and Chief Justice Jay) was right – the law of nations is part of federal common law, which is now understood to be federal law in the jurisdiction-conferring sense.

Marco: not “common law” but “law of the land,” “laws of the United States,” etc. I did not know about Fletcher’s erroneous statement, but it sounds something like the absolute nonsense the Curtis Bradley put out in an article that there are no state court decisions recognizing that customary internaitonal law is binding. I turned on my computer and found numerous state court (as well as some U.S. S.Ct. and other federal court) decisions recognizing that C.I.L. is binding. They are documented in our West Pub. casebook (International Law and Litigation in the United States (3 ed. 2009)) and in my article “In Their Own Words…” in 14 U.C. Davis J. Int’l L. & Pol’y 205, 245-51 (2008), available at http://ssrn.com/absract=1485703 The article also has a section on C.I.L. as part of the laws of the United States, at pp. 231-39, passim. The cases documented therein also demonstrate that C.I.L. has been alive and well since the Founding.
Some writers seem to have Westlaw-phobia (or they know that the predominant trends in judicial decision are against them and they simply ignore the cases).

I don’t think Fletcher’s statement is necessarily wrong – I’m no expert on this point, but it does seem that in the 19th century international law was considered to be part of the “general common law” rather than the “laws of the United States” in the jurisdiction-conferring sense – I just don’t think it does the work that Bellia & Clark require. Their argument depends on the First Congress having understood that arising-under jurisdiction did not extend to the law of nations, and thus intending to restrict ATS jurisdiction to alien diversity cases. Fletcher disagrees, I think, because he accepts that in the late 18th century (as Henfield’s Case demonstrates) the prevailing view was that the law of nations was in fact part of the “laws of the United States.” Regardless of whether this view changed somewhere along the way, as Fletcher suggests, we are now more-or-less back to the original view.